DONALD L. BABETS & others n1 v. SECRETARY OF HUMAN
SERVICES
& another n2n1 David H. Jean and the Reverend Kathryn
Piccard. The Massachusetts Chapter of the National
Association of Social Workers and Catherine Brayden
were
originally also named as plaintiffs, but the complaint
was
dismissed as to them, on the defendants' motion.
n2 The Commissioner of the Department of Social
Services.
The Governor of the Commonwealth was originally also
named
as a defendant, but the claims against him were dismissed
on
the defendant's motion.
No. 4681
Supreme Judicial Court of Massachusetts, Suffolk
403 Mass. 230; 526 N.E.2d 1261; 1988 Mass. LEXIS 241
May 5, 1988 August 15, 1988
PRIOR HISTORY: [***1]
CIVIL ACTION commenced in the Superior Court Department on
January 30, 1986.
A motion to compel production of documents was heard by James P.
Lynch, Jr., J., and the matter was reported by him to the Appeals
Court. The Supreme Judicial Court granted a request for direct
review.
DISPOSITION: So ordered.
HEADNOTES: Constitutional Law, Separation of powers. Executive.
Privileged Communication. Evidence, Privileged communication.
SYLLABUS: The doctrine of separation of powers expressed in art. 30
of the Massachusetts Declaration of Rights does not require
recognition of an asserted privilege in the Executive branch not to
disclose internal documents requested in an action against the
government. [233-234]
This court declined to create an asserted common law privilege
in the Executive branch not to disclose internal documents
requested in an action against the government. [234-239]
COUNSEL: Joan A. Lukey, Special Assistant Attorney General Patrick
M. Reagan with her) for the defendants.
Anthony M. Doniger Susan A. Hartnett & Marjorie Heins with him)
for the plaintiffs.
Scott P. Lewis, Tamara S. Wolfson & Barbara J. Valliere, for
Massachusetts Coalition for the Homeless & others, amici [***2]
curiae, submitted a brief.
Carl Valvo, Assistant Attorney General, for the Attorney
General, amicus curiae, submitted a brief.
JUDGES: Hennessey, C.J., Wilkins, Nolan, Lynch, & O'Connor, JJ.
OPINIONBY: HENNESSEY
OPINION: [*231] [**1262] This matter is before us on a
report, pursuant to G. L. c. 231, @ 111 (1986 ed.), and Mass. R.
Civ. P. 64, 365 Mass. 831 (1974), by a Superior Court judge of his
interlocutory order allowing the plaintiffs' motion to compel
production of documents which the defendants contend are protected
from disclosure by a "governmental privilege." n3 The judge has
stayed his order pending resolution of the report. We granted the
plaintiffs' application for direct appellate review, and now hold
that the judge's order n4 was correct, and that there is no such
privilege in Massachusetts.
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- - - - - - -
n3 Also referred to variously as "executive privilege," Doe v.
Alaska Superior Court, 721 P.2d 617 (Alaska 1986); "deliberative
process privilege," Taxation with Representation Fund v. Internal
Revenue Serv., 646 F.2d 666 (D.C. Cir. 1981); Coastal States Gas
Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980);
"administrative deliberation privilege" or "predecisional
deliberative process privilege," Resident Advisory Bd. v. Rizzo, 97
F.R.D. 749 (E.D. Pa. 1983); and "predecisional privilege," Mobil
Oil Corp. v. Department of Energy, 102 F.R.D. 1 (N.D.N.Y. 1983).
For purposes of this opinion, we will, for the most part, eschew
labels and refer simply to the "asserted privilege." [***3]
n4 The judge's report is as follows: "The [plaintiffs'] motion
to compel production of documents is allowed. . . . The
correctness of the allowance of that motion is to be reported to
the Appeals Court."
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- - - - - - -
The plaintiffs commenced the action below by filing a complaint
requesting declaratory and injunctive relief and challenging the
lawfulness of certain regulations promulgated by the Department of
Social Services (DSS). The regulations, which are codified at 110
Code Mass. Regs. @@ 7.100 et seq. (1986), were attacked on the
ground that they "irrationally and arbitrarily categorize foster
parent applicants by marital status and sexual preference in such
a way as to exclude single persons, unmarried couples and gay
[i.e., homosexual] men and lesbians from equal consideration as
foster parents." The plaintiffs contended that these regulations
violate their State and Federal constitutional rights to equal
protection, due process, freedom of association, and privacy, as
well as their statutory rights under 42 U.S.C. @ 1983 (1982), G. L.
c. 12, @ 11 (1986 ed.), and G. L. c. 214, @ 1B (1986 ed.). They
[***4] also contended that [*232] the regulations violate
State and Federal law requiring that foster care placements serve
the best interests of the child.
The plaintiffs requested the defendants to produce certain
documents relating to the process by which the policy embodied in
these regulations was developed and promulgated, including internal
memoranda and drafts of proposed regulations. The defendants
complied with some of these requests, but refused to produce other
requested documents, specifically those that, in their view,
"constitute or contain information [**1263] protected by the
governmental privilege."
The plaintiffs then moved the court to compel the defendants to
produce these documents. After hearing and in camera inspection of
the disputed documents, the judge allowed this motion. In his
memorandum of decision and order, the judge noted that there was
merit to the defendants' position, but that he was constrained to
follow existing law, and not to innovate or to create new law. He
ruled that there existed under Massachusetts law no privilege that
the defendant could invoke to excuse production of the requested
documents. Recognizing, however, the importance of the issue,
[***5] and that an appellate court might create such a privilege
when squarely presented with the issue, he reported the matter of
the correctness of his order, and stayed the order pending
resolution of the report.
In order to present the matter in a more concrete and meaningful
posture, the judge went on to make certain findings and rulings
concerning the defendants' assertion of the privilege. Taking
cognate Federal law n5 as his model, he found and held, assuming
that the asserted privilege existed, that the defendants had
properly invoked it, and that certain specified documents were
within its scope.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n5 As to the procedures required to be followed in invoking the
privilege under Federal law, see Resident Advisory Bd. v. Rizzo, 97
F.R.D. 749, 752-753 (E.D. Pa. 1983). As to the criteria used in
determining the applicability of the Federal privilege to a given
document, see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-154
(1975); Taxation with Representation Fund v. Internal Revenue
Serv., 646 F.2d 666, 677-678 (D.C. Cir. 1981); Coastal States Gas
Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980);
Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 5-6
(N.D.N.Y. 1983); Resident Advisory Bd., supra at 753.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - - [***6]
[*233] The judge correctly ruled that there presently exists
no privilege of the type the defendants assert. We have previously
declined to consider the question in the abstract. Opinion of the
Justices, 368 Mass. 866, 880 (1975). This case squarely presents
the issue.
The defendants contend that this court should create a privilege
under Massachusetts law, modeled on Federal law of executive
privilege. They advance both constitutional grounds and
nonconstitutional policy arguments in favor of such a privilege.
We discuss first the constitutional arguments.
1. The defendants argue that executive privilege inheres in or
is a necessary ramification of the doctrine of separation of
powers, which is fundamental to our form of government, and which
finds positive expression in art. 30 of the Declaration of Rights
of the Massachusetts Constitution. We disagree. We think that the
doctrine of separation of powers does not require recognition of
the asserted privilege. What this doctrine interdicts is the
interference by one branch of government with the power or
functions of another. See New Bedford Standard-Times Publishing
Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404,
410-411 (1979); [***7] Opinion of the Justices, 375 Mass. 795,
813-814 (1978); Opinion of the Justices, 372 Mass. 883, 892-894
(1977); Opinion of the Justices, 365 Mass. 639, 640-642 (1974);
Opinion of the Justices, 208 Mass. 610, 613 (1911). Our declining
to recognize the asserted privilege does not constitute the
exercise of nonjudicial power or interfere with the Executive's
power. We think that it is relevant that the defendants have
failed to demonstrate that the Executive does not function
effectively because of the lack of the asserted privilege.
Moreover, the explicit constitutional grant to the Legislature of
a "privilege" as to its deliberations, see art. 21 of the
Declaration of Rights of the Massachusetts Constitution, further
supports our view that a corresponding privilege in the Executive
is not constitutionally required. Had the framers of our
government's structure intended to recognize in our Constitution an
executive privilege, it is reasonable to expect that they would
expressly have created one.
[*234] [**1264] We add that, even under Federal law, where
the privilege is well established, and which the defendants [***8]
urge us to adopt as our model, "there is abundant statutory
precedent for the regulation and mandatory disclosure of documents
in the possession of the Executive branch . . . . [and s]uch
regulation of material generated in the Executive branch has never
been considered invalid as an invasion of its autonomy." Nixon v.
Administrator of Gen. Servs., 433 U.S. 425, 445 (1977) (citations
omitted).
2. Having considered and rejected the defendants' constitutional
argument, we now turn to their contention that we should create a
privilege as a matter of common law. We observe, first, that the
defendants must overcome the customary reluctance of this court,
exhibited on many occasions, to create common law privileges to
exclude relevant evidence. We have consistently concluded that the
creation of such privileges ordinarily is better left to the
Legislature. See infra.
Although this court has the power to create privileges, Three
Juveniles v. Commonwealth, 390 Mass. 357, 360 (1983), it is a power
that we have exercised sparingly, and "only to the very limited
extent that permitting a refusal to testify or excluding relevant
evidence has [***9] a public good transcending the normally
predominant principle of utilizing all rational means for
ascertaining truth." Id. at 359-360, quoting Elkins v. United
States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting).
"[P]rivileges are exceptions to the general duty imposed on all
people to testify," Commonwealth v. Corsetti, 387 Mass. 1, 5
(1982); Three Juveniles, supra at 359; Matter of Pappas, 358 Mass.
604, 607-609 (1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S.
665, 709 (1972), and to the fundamental principle that "the public
'has a right to every man's evidence' . . . [which] has been
preferred, on the whole, to countervailing interests." Matter of
Pappas, supra at 607, quoting 8 J. Wigmore, Evidence @ 2192
(McNaughton rev. 1961). See Three Juveniles, supra at 359;
Commonwealth v. Collett, 387 Mass. 424, 442 (1982) (Lynch, J.,
dissenting). See also United States v. Bryan, 339 U.S. 323, 331
(1950). Accordingly, existing privileges are strictly [***10]
construed, Three Juveniles, supra at 359; [*235] Corsetti, supra;
Foster v. Hall, 12 Pick. 89, 97 (1831), and we have been reluctant
to create new privileges, preferring to leave this area to
legislative determination. See Three Juveniles, supra at 360;
Commonwealth v. Mandeville, 386 Mass. 393, 409 (1982); Matter of
Pappas, supra at 611-612. Cf. Usen v. Usen, 359 Mass. 453, 456-457
(1971) (court "not free to water down the legislative policy
embodied in the [psychotherapist-patient privilege] statute by
loose construction"). Accord In re Terry W., 59 Cal. App. 3d 745,
749 (1976); People v. Sanders, 99 Ill. 2d 262, 271 (1983); n6
Cissna v. State, 170 Ind. App. 437, 439-440 (1976); State v.
Gilroy, 313 N.W. 2d 513, 518 (Iowa 1981). Cf. Petition for the
Promulgation of Rules, 395 Mass. 164, 169, 170-172 (1985)
(declining to promulgate evidentiary rule of "reporter's
privilege"; noting that adoption of evidentiary rules "require[s]
[***11] careful [**1265] coordination with the Legislature;"
but also citing the advantages of the common law case-by-case
approach). See generally McCormick, Evidence @ 75, at 180 (3d ed.
1984) ("It may be argued that legitimate claims to confidentiality
are more equitably received by a branch of government not
preeminently concerned with the factual results obtained in
litigation, and that the legislatures provide an appropriate forum
for the balancing of the competing social values necessary to sound
decisions concerning privilege"); Note, The Parent-Child Privilege,
1984 B.Y.U.L. Rev. 599, 608-614 & n.63 ("Since the early 1800's the
vast majority of new privileges created have been of legislative
origin," citing McCormick, supra; and [*236] surveying State
codifications of law of privileges). n7 The Legislature has created
or codified various types of privileges. See [*237] G. L. c.
112, @ 135 (1986 ed. & Supp. 1987) (certain communications to a
licensed social worker); G. L. c. 233, @ 20, Second (1986 ed.)
(spouse's election not to testify against spouse in a criminal
proceeding [other than for child abuse or nonsupport]); G. L. c.
233, @ 20A (1986 ed.) (certain communications [***12] to
clergymen); G. L. c. 233, @ 20B (1986 ed. & Supp. 1987) (certain
communications between psychotherapists and patients). Cf. G. L.
c. 233, @ 20, First (1986 ed.) (testimonial disqualification of
spouse as to private conversations with spouse). n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
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n6 "The expansion of existing testimonial privileges and
acceptance of new ones involves a balancing of public policies
which should be left to the legislature. A compelling reason is
that while courts, as institutions, find it easy to perceive value
in public policies such as those favoring the admission of all
relevant and reliable evidence which directly assist the judicial
function of ascertaining the truth, it is not their primary
function to promote policies aimed at broader social goals more
distantly related to the judiciary. This is primarily the
responsibility of the legislature. To the extent that such
policies conflict with truthseeking or other values central to the
judicial task, the balance that courts draw might not reflect the
choice the legislature would make." Sanders, supra at 271.
n7 The other States are divided on the issue of which branch of
government is the appropriate source of new privileges. In at
least twenty States, common law innovation in this area has been
foreclosed by statute or rule of court. See Alaska R. Evid. 501
(1987); Ark. R. Evid. 501 (1988); Cal. Evid. Code @ 911 (Deering
1986); Fla. Stat. Ann. @ 90.501 (West 1979); Hawaii R. Evid. 501,
Hawaii Rev. Stat. @ 626-1 (1981); Idaho R. Evid. 501 (1985); Me. R.
Evid. 501 (1988); Md. Cts. & Jud. Proc. Code Ann. @ 9-101 (1984);
Miss. R. Evid. 501 (1988); Mont. R. Evid. 501 (1988); Neb. Rev.
Stat. @ 27-501 (1985); Nev. Rev. Stat. @ 49.015 (1987); N.H.R.
Evid. 501 (1986); N.J. Stat. Ann. @ 2A:81-4 (West 1976); N.M.R.
Evid. 11-501 (1986); N.D.R. Evid. 501 (1988); Okla. Stat. Ann. tit.
12, @ 2501 (West 1980); Or. R. Evid. 514 (1988); S.D. Codified Laws
Ann. @ 19-13-1 (Rule 501) (1987); Tex. R. Civ. Evid. 501 (1988);
Tex. R. Crim. Evid. 501 (1988); Wis. Stat. Ann. @ 905.01 (West
1975). In at least ten other States, common law jurisdiction in
this area has been expressly sanctioned by statute or rule of
court. See Ariz. R. Evid. 501 (1988); Colo. R. Evid. 501 (1980);
Del. Uniform R. Evid. 501 (1980); Mich. R. Evid. 501 (1988); N.C.R.
Evid. 501 (1988); Ohio R. Evid. 501 (1985); Utah R. Evid. 501
(1988); Vt. R. Evid. 501 (1985); W. Va. R. Evid. 501 (1988); Wyo.
R. Evid. 501 (1978). We are aware of four State Supreme Courts
which have recognized a privilege of the type asserted by the
defendants. See Doe v. Alaska Superior Court, 721 P.2d 617-624
(Alaska 1986) (internal communications in Governor's files
regarding appointment to State medical board); Hamilton v. Verdow,
287 Md. 544 (1980) (report to Governor of investigation into
release of convicted murderer) (on State constitutional grounds);
Nero v. Hyland, 76 N.J. 213 (1978) (report of character
investigation of prospective State appointee, prepared by State
police for Governor and Attorney General; State ex rel. Attorney
Gen. v. First Judicial Dist. Court, 96 N.M. 254 (1981)
(investigatory report on prison riot, prepared by State Attorney
General) (on State constitutional grounds). In addition, other
courts have recognized various types of executive privilege in
contexts further removed from that of the instant case; generally,
in the context of records of law enforcement agencies. See, e.g.,
Assured Investors Life Ins. Co. v. National Union Assocs., 362 So.
2d 228 (Ala. 1978) (transcript of district attorney's interviews
with officers and directors of a civil defendant, relating to
ongoing criminal investigation collateral to the civil action);
Martinelli v. District Court, 199 Colo. 163 (1980) (civil defendant
police department's personnel files and report of internal affairs
division's investigation); People v. Ellerhorst, 12 Mich. App. 661
(1968) ("Formal" claim of privilege sustained where petitioner made
only a "dubious showing of necessity" for documents relating to
Internal Revenue Service agent's knowledge of a government
witness's credibility); Cirale v. 80 Pine Street Corp., 35 N.Y.2d
113 (1974) (report of investigation by municipal board of inquiry
as to cause of explosion); Henneman v. Toledo, 35 Ohio St. 3d 241
(1988) (defendant police department's internal affairs division's
report of investigation into alleged battery by police officers).
[***13]
n8 Because we ordinarily have deferred to the Legislature on
issues of evidentiary privilege, it is pertinent to observe what
the Legislature has done in this or in related contexts. Of
course, the Legislature has not specifically acted to create a
privilege of the type asserted by the defendants. While we impute
little significance to such legislative inaction, we do find some
evidence that may reflect the Legislature's prevailing attitude on
this matter in the analogous context of public records law. The
Public Records Act, G. L. c. 66 (1986 ed.), requires public access
to various records and documents in the possession of public
officials, with certain exceptions. See Globe Newspaper Co. v.
Boston Retirement Bd., 388 Mass. 427, 430-431 (1983). Among the
documents exempted from mandatory disclosure are "inter-agency or
intra-agency memoranda or letters relating to policy positions
being developed by the agency . . ." (emphasis added). G. L. c. 4,
@ 7, Twenty-sixth (d) (1986 ed.). By its terms, this exemption
protects such documents from disclosure only while policy is "being
developed," that is, while the deliberative process is ongoing and
incomplete. See Brant, Public Records, FIPA and CORI: How
Massachusetts Balances Privacy and the Right to Know, 15 Suffolk U.
L. Rev. 23, 31 (1981).
The Legislature has thus chosen to insulate the deliberative
process from scrutiny only until it is completed, at which time the
documents thereby generated become publicly available. See
Letter-Determination of the Supervisor of Public Records 87/208,
January 20, 1988, at 2-3; Letter-Determination of the Supervisor of
Public Records 87/208, November 20, 1987, at 3-4;
Letter-Determination of the Supervisor of Public Records 87/196,
December 23, 1987, at 4; Letter-Determination of the Supervisor of
Public Records 87/196, October 14, 1987, at 3-4. Thereafter, they
are accessible by "'any person' whether intimately involved with
the subject matter of the records he seeks or merely motivated by
idle curiosity." Bougas v. Chief of Police of Lexington, 371 Mass.
59, 64 (1976). It arguably would be anomalous if access to these
materials, intended to be available even to the merely "idly
curious," should be denied to those who, like the plaintiffs here,
have a specific and demonstrable need for them.
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- - - - - - - [***14]
[**1266] Against this court's consistent reluctance to create
common law privileges, as shown above, we appraise the defendants'
[*238] arguments that the executive privilege urged here will
promote good public policy. They say that the privilege prevents
possible public misinterpretation or confusion about the reasons
behind executive policies. They also say that the privilege
advances the public interest in well considered executive
policymaking, by promoting candid and unconstrained communication
and exchange of ideas between and among executive policymakers and
their advisors. They contend that our failure to recognize the
privilege would have a "chilling effect" on such intra-executive
communication, to the detriment of the policymaking process and,
ultimately, the public interest.
The plaintiffs controvert the defendant's arguments, and urge
additional considerations that they say militate against the
creation of the asserted privilege. They argue that the history of
the Commonwealth demonstrates that the Executive has functioned
effectively despite the lack of the privilege, and that this
refutes the defendants' argument as to the chilling effect of
disclosure on intra-executive [***15] communications. It is
arguable that the threatened "misinterpretation or confusion" could
be forestalled by stating the actual reasons for the adoption or
rejection of a particular policy, either at the time of
promulgation, or later, in response to queries or erroneous
attribution, and that public debate about the meaning and purposes
of executive policy may result in better policymaking.
There is force and logic to the defendants' policy arguments,
but the arguments against the privilege are also persuasive. We
have been especially reluctant to create new privileges on the
basis of speculation or conjecture as to the harms which may result
from our failure to do so. See Matter of Roche, 381 Mass. 624, 635
(1980). We think that the defendants' assertions (which are
unsupported by any empirical evidence) are speculative in light of
the long history of the Commonwealth and the lack of any showing of
real harm that has accrued from the absence of the privilege. This
contrasts with the plaintiffs' specific and demonstrable need for
the requested documents in order to prosecute their action for the
vindication of [*239] their constitutional and statutory
rights, [***16] allegedly violated by the defendants. n9
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- - - - - - -
n9 We express no opinion on the merits of the plaintiffs'
claims.
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- - - - - - -
We therefore decline to create a privilege of the type asserted
by the defendants, and we affirm the correctness of the order
below.
So ordered.